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International Law to Cosmopolitan Law
A new global political order is increasingly regulated by "cosmopolitan law." Scholars chart this change through developments in international humanitarian law, environmental law and the rules of warfare.
International law is law between states. Cosmopolitan law is law above states. Cosmopolitan law creates and appeals to universal rights and duties beyond the claims of any one state. It is qualitatively different than the laws of states or the law made between one state and another. Cosmopolitan law creates a larger community of states by providing a common vision and set of values.
From a System of States to a Community of States
Cosmopolitan law is a move away from the previous conception of law where international law is based solely on agreement between sovereign nation-states. According the conventional, state-centered view, international law exists as laws between a system of autonomous states (see Figure 1).
However, following World War II a shift occurred. People began to see that states were not the only subjects of international law. Individuals and communities were also the subject of international law.
This change signalled a shift to an understanding of supranational law as a protection of basic, universal human values. According to this viewpoint, these values were not limted by the territorial boundaries of nation-states. Law between states became a law for states—that is, cosmopolitan law. The ideal of cosmopolitan law was that law among states should provide basic standards which no state should, in principle, be able to ignore.
In addition to a developing view of common human values, there was also an increasingly broad acknowledgment that all humans were caught up in a common community of fate and shared a common heritage. In short, humans were increasingly understood to be part of a global community of nations rather than merely a system of states.
This change in vision does not signal the demise of the nation state. However, the recognition of common values and a common heritage and fate does involve the “willing surrender” of certain aspects of state authority. In principle, the laws of states should support and be consistent with the values and regulations of the larger global community (see Figure 2).
Examples of Law Becoming Cosmopolitan
State-centered international law has not disappeared. However, three developing areas of law push forward the vision of cosmopolitan over international law.
One of the basic tenets of the state-centered view of international relations was that states had a right to withstand intervention into their domestic affairs. However, humans rights law calls this view into question. The development of a global human rights regime involves a limitation of state sovereignty.
For instance, since the Nuremberg and Tokyo war crimes tribunals (1945) there has been a wider acknowledgment of a set of “transcendent obligations” to respect human rights over state laws. Individuals, when faced with a discrepancy between national law and international rules, are obligated to transgress the laws of the state. In other words where human rights were concerned, the sovereignty of states was limited in principle by the rules and principles of the global community. In another example, the UN Security Council's resolution 688 (1991) created a safe haven for Kurds within Iraq. This “broke new ground” in limiting a state's sovereignty with respect to the treatment of its own people.
At a global level, human rights are firmly entrenched in the UN Universal Declaration of Human Rights (1948) and subsequent global and regional conventions on civil, political and economic rights. More recently, the principle of the individual as the subject of cosmopolitan law has been extended to minority groups within countries (in the UN Declaration on the Rights of Persons Belonging to Nation, Ethnic, Religious and Linguistic Minorities).
In addition to formal legal codification of principles by transnational organizations (such as the UN), the human rights regime is forwarded by a growing network of nongovernmental organizations (NGOs). The role of NGOs has become increasingly important because of their activities in monitoring and publicizing human rights abuses, as well as their efforts campaigning for specific causes and creating a global network of human rights organizations.
Even though the adoption of a basic human rights framework is far from universal, there is growing consensus among nations. In a human rights regime, the legitimacy of a state is not defined by its sovereignty, but by its adherence to globally recognized human rights principles.
The growth of environmental law signals the growing recognition that the earth and common limited resources constitute the “common heritage of mankind.” There are three key elements of the concept of a common heritage:
The recognition of the importance of environmental law rests on the realization that the actions of one country are deeply interconnected with the welfare of people far beyond the state's territorial boundaries.
Rules of War
The rules of warfare are based on the belief that the most appalling consequences of war should be illegal. In other words, even though war cannot be abolished, it should be made as humane as possible. War should be conducted in a manner consistent with minimum standards of civilized behavior.
Most of the rules of warfare evolved from customary law among nations. However, since that time, limitations on the behavior of states and individuals during warfare have been increasingly codified in a growing body of regulations. Significantly, these rules involve not simply limitations on what states or military personnel can do to enemy combatants, but also involve norms for how a state should treat its own citizens—as witnessed by legally recognizing the status of conscientious objection against the military actions of a state.
The rules of war and the human rights law are complimentary international rules. Used together, they lay down principles and norms for national and international behavior which, in principle, limit the scope of state sovereignty.
The growing body of cosmopolitan law creates powers and constraints, and rights and duties, transcending the claims of nation states. The evolution of human rights law, environmental law and rules of warfare are examples of a shift from state-centered law to law above states. While the notion of international law assumes a system of autonomous states, the concept of cosmopolitan law rests on the realization that there exists a moral order and rights and duties that transcend state boundaries.
Data and Methods:
Historical and theoretical research.
Research funded by the Economic and Social Research Council.
Held, David, Anthony McGrew, David Goldblatt, and Jonathan Perraton. 1999. Global Transformations: Politics, Economics and Culture. Stanford: Stanford University Press. Ch. 1, pp. 32-86.
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